BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld a complaint about an interview on talkback radio show, Kerre McIvor Mornings, in which host Kerre McIvor criticised a caller for their position on the Government’s COVID-19 response saying ‘I want to be angry with you, but I just feel sorry for you, that you need a government to look after you. You sad pathetic creature.’ The Authority found the caller was given a fair and reasonable opportunity to put forward their views, and McIvor’s comments, while seen as disrespectful by some listeners, did not reach the level necessary to constitute unfair treatment. The balance standard did not apply.

Not Upheld: Fairness, Balance

The broadcast

[1]  On her Newstalk ZB morning programme broadcast on 14 December 2021, Kerre McIvor discussed COVID-19 restrictions and queried the rationale for Auckland remaining at ‘red’ in the COVID-19 protection framework. In doing so, she mentioned:

I would love to know, I would really love to hear an explanation of how this can be. 17 days will make all the difference to many businesses. And yet this Government seems in the thrall of its modellers… who haven't got a single, solitary prediction right since this whole pandemic started. Slaughter a chicken, throw its entrails over an operating table, which is lying spare because people aren't dying in their droves because of the galloping COVIDs, and draw the patterns from there. When will Auckland go to red Almighty one? I don't know, slaughter a chicken, see what pattern it falls into. It makes absolutely no sense, which is said time and time and time again… Please, fan girl, fan boy, ring in. Explain how this makes sense.

[2]  McIvor then discussed the restrictions, and the Government’s response more broadly, with various callers. This included a text from one listener asking McIvor to ‘stop moaning about the Government. They’re doing everything just right.’

[3]  Shortly after, the following exchange occurred with a caller:

McIvor:   The modellers have not got a single model right.

Caller:     Pardon?

McIvor:   The modellers have been talking about the death and destruction, even in this latest one, they haven't got it right. They were talking about many hundreds of cases. That hasn't happened.

Caller:     What, in New Zealand, you mean?

McIvor:   Yes.

Caller:     But who knows what's going to happen next week if that, that new virus is going to come in.

McIvor:   You're living in terror yourself. It's a horrible way to live.

Caller:     I'm not living in terror.

McIvor:   When you say, who knows what's going to happen next? Chances are you'll wake up, you'll have breakfast, you'll have a lovely day with your family.

Caller:     No, no, that's not right at all. I think we should all be very grateful -

McIvor:   No -

Caller:     With how we've been looked after.

McIvor:   No. Looked after? For God's sake, I'm an adult woman. I can look after my own self.

Caller:     Our whole country has been looked after Kerre.

McIvor:   For God's sake… It's that kind of absolutely bunkered mentality that gives me the heebies.

Caller:     It's not at all.

McIvor:   It is.

Caller:     It's not.

McIvor:   Who wants a government to look after it? Get out of the road.

…

McIvor:   You're full of it, and I really fear for you. I, I want to be angry with you, but I just feel sorry for you, that you need a government to look after you. You sad pathetic creature.

[4]  Following an ad break, McIvor referred to texts she received:  

By crikey, have you texted me! In 22 years I don’t think I’ve seen that many texts and I have to say the vast majority were supportive of me. I accept that it was probably a bit strong and I will read out those that said that…

[reading text] To call someone a ‘sad, pathetic creature’ just because they hold a different opinion to you is uncalled for and just bad taste.

Sums up the negatives, but, yeah, I probably need a holiday.

[5]  Following another ad break, McIvor referred to the above call with a listener, stating:

I think she is sad, and I think it is pathetic if you think that the Government needs to look after you. I'm sorry, I don't see anything to apologise for.

The complaint

[6]  Jake Benge complained the broadcast breached the balance and fairness standards for the following reasons:

• McIvor abused her position by degrading a listener she does not agree with. She resorted to name calling and attempted to humiliate the caller.
• Her opinion is her own, and she is obviously welcome to share it, but the way she has treated this caller was disrespectful and amounted to ‘bullying behaviour’.

The broadcaster’s response

[7]  NZME Radio Ltd (NZME) did not uphold the complaint, noting:

• Newstalk ZB is an adult targeted radio station for 30-64 year olds.’
• ‘Kerre McIvor is a talk host known for her frank and forthright discussion of all manner of topics and regular listeners would be aware of this.’
• ‘Talkback hosts are known for making provocative statements to stimulate robust debate. The BSA has stated in a previous decision relating to this standard, that “audiences expect that Newstalk ZB will often feature conservative and controversial opinions.”¹’
• ‘While we accept that the COVID-19 global pandemic and its effect on public health services are important and topical issues,’ the balance standard ‘applies only to news and current affairs programmes, which will usually be readily identified, taking into account what audiences would reasonably expect to be news and current affairs (such as a news bulletin). The comment complained of was made by the host during her talkback show.’
• ‘The BSA has previously stated, talkback segments are “analogous to ‘programmes which are wholly based on opinions or ideas’, which are generally not considered news or current affairs. While the host… discussed topical issues, listeners would not have expected a balanced or authoritative examination of these issues, in the context of the talkback environment.”²’
• Referring to a previous decision:³
  • ‘The caller willingly called into a talkback show, during a time when she was aware that the host was criticizing the Government.’
  • ‘Although the discussion with the host was at times robust, the caller was given time to present her views and opinions.’
• ‘The Oxford English dictionary definitions of “pathetic” are “arousing pity, especially through vulnerability or sadness” and “miserably inadequate; of very low standard”. As is clear from her preceding statement (“I want to be angry with you but I just feel sorry for you, that you need a Government to look after you”), the host used this word in the former sense, i.e. the host felt pity for the caller. Although we accept… that some listeners may have viewed the comment to be in poor taste, on balance we do not consider that the caller was treated unfairly by the host. This was an animated discussion during which the caller was given every opportunity to voice her opinion… we reject the claim that the host’s treatment of the caller [amounted] to bullying.’

The relevant standards

[8]  The fairness standard⁴ protects the dignity and reputation of those featured in programmes.⁵ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

[9]  The balance standard⁶ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁷ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁸

Our analysis

[10]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[11]  The right to freedom of expression is an important right in a democracy and it is important that we weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

[12]  Both the Radio Code of Broadcasting Practice,⁹ and our previous decisions,¹⁰ acknowledge the important role talkback radio has in providing a forum for the free and frank exchange of opinions to occur. Therefore, this forum is granted some latitude to be provocative in the interests of robust debate.

[13]  Previous research suggests audiences accept this leniency.¹¹ However, the same research suggested caution was needed around the personal insults of callers.¹²

[14]  We agree talkback hosts ought to be professional and respectful when dealing with callers, including those who hold different views. However, for the reasons set out below, we have not identified harm arising from the broadcast outweighing the broadcaster’s right to freedom of expression and the audience’s right to receive the ideas broadcast. The caller was afforded a fair and reasonable opportunity to put forward their views, and McIvor’s comments did not reach the level necessary to constitute unfair treatment.

Fairness

[15]  The fairness standard applies to individuals or organisations participating in or referred to in a broadcast. The complainant was concerned McIvor did not treat the specific caller fairly.

[16]  A consideration of what is fair depends on the nature of the programme and its context (including the public significance of the broadcast).¹³ Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution.¹⁴ The nature of the individual, for example a public figure familiar with dealing with the media, is also a relevant factor when considering what is fair.¹⁵

[17]  We have previously found McIvor calling a caller ‘pathetic’ did not reach the threshold in finding a breach of the good taste and decency standard, within that context.¹⁶ For similar reasons, we do not consider McIvor’s treatment of this caller amounted to unfair treatment justifying regulatory intervention. The addition of the word ‘creature’, while increasing the potential harm caused by the broadcast, does not detract from our overall finding.

[18]  In reaching this finding, we have considered the following factors:

• Kerre McIvor Mornings has an adult target audience
• The programme is a talkback radio show, an environment where robust statements are to be expected in the interests of generating debate.¹⁷
• McIvor is renowned for her upfront and plainspoken views.¹⁸
• McIvor articulated her views on the Government’s response to COVID‑19 early in the programme (such as by referring to the use of chickens as a form of divination).
• The caller willingly called in to a talkback show to participate in a discussion about COVID-19 restrictions, likely knowing these views.
• The caller was not a public figure (it is well established the threshold for finding unfairness is higher for public figures who would be used to being the subject of robust scrutiny and regular media coverage).¹⁹
• McIvor engaged in the debate with the caller for over 3 minutes.
• The caller was given ample opportunity to explain their position and respond to McIvor’s criticism of that position.
• McIvor acknowledged she was ‘probably a bit strong’, and some listeners agreed, but maintained her position following an ad break.

[19]  We acknowledge the phrase ‘sad pathetic creature’ was likely understood as an insult. That being said, the threshold for a finding of unfairness may be higher in a talkback environment.²⁰ Callers should reasonably expect by choosing to enter and participate in this forum, they may receive an adverse response if the host does not share their views,²¹ particularly where the host has a forceful stye well known to listeners.²²

[20]  We consider listeners would have understood the phrase, within the context of the call, reflected McIvor’s opinion on the caller’s position and people sharing the caller’s perspective, rather than a personal attack on the caller.

[21]  Our finding is supported as McIvor maintained this position later in the show (‘I think she is sad, and I think it is pathetic if you think that the Government needs to look after you’)²³ and later apologised on Facebook for using the word ‘creature’ (but stood by stating ‘sad’ and ‘pathetic’).²⁴

[22]  We also note several listeners empathised with the caller, as McIvor notes following the ad break, suggesting the caller did not come across negatively. To the contrary, some listeners suggested the comments reflected negatively on McIvor’s own character.

Balance

[23]  This standard requires reasonable efforts to be made to reflect significant perspectives when ‘controversial issues of public importance’ are discussed in news and current affairs programmes.²⁴ While the issue of COVID-19 related restrictions is a controversial issue of public importance, the complaint does not concern a failure to present alternative perspectives on that topic. It is focused on McIvor’s treatment of a caller which is a matter better addressed under the fairness standard. The balance standard does not apply.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
11 April 2022    

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Jake Benge’s formal complaint to NZME – 15 December 2021

2  NZME’s response to the complaint – 3 February 2022

3  Benge’s referral to the Authority – 3 February 2022

4  NZME’s response to the referral – 21 February 2022

5  Benge’s confirmation of no further comments – 15 March 2022

¹ Day & Moss and NZME Radio Ltd, Decision No. 2018-090 at [21]
² Haines and NZME Radio Ltd, Decision No. 2017-039 at [27]
³ McCullough and NZME Radio Ltd, Decision No. 2020-008
⁴ Standard 11, Radio Code of Broadcasting Practice
⁵ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁶ Standard 8, Radio Code of Broadcasting Practice
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ As above
⁹ Guideline 1c
¹⁰ Oluwole and NZME Radio Ltd, Decision No. 2021-023 at [13], Singh and Radio Virsa, Decision No. 2020-124 at [15]; and Te Whata and Mediaworks Radio Ltd, Decision No. 2020-141 at [13]–[14]
¹¹ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Matters of Opinion: Expectations and Perceptions of Standards in Talkback Radio” (1 June 2011) <bsa.govt.nz>
¹² At 5
¹³ Guideline 11a
¹⁴ Guideline 11b
¹⁵ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
¹⁶ Singh and NZME Radio Ltd, Decision No. 2020-089
¹⁷ Singh and NZME Radio Ltd, Decision No. 2020-089 at [10]
¹⁸ Singh and NZME Radio Ltd, Decision No. 2020-089 at [10]
¹⁹ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21; and Frewen and Television New Zealand Ltd, Decision No. 2020-146B at [13]
²⁰ See Haines and NZME Radio Ltd, Decision No. 2017-039 at [14] citing LQ and New Zealand Media and Entertainment, Decision No. 2016-059 at paragraph [8]
²¹ As above
²² Haines and NZME Radio Ltd, Decision No. 2017-039 at [15]
²³ Our emphasis
²⁴ Kerre McIvor “I snapped at a caller this morning.” (14 December 2021) Facebook <facebook.com>
²⁵ Guideline 8a